As any reader of this blog (or casual reader of immigration news) knows, the Trump administration has declared war against the State of California due to the State’s passage of various laws designed to protect undocumented immigrants as well as employers from unwanted federal intrusion into workplaces. Earlier this year, Thomas D. Homan, acting director of Immigration and Customs Enforcement (ICE), has criticized California for their efforts to protect undocumented immigrants and limit law enforcement’s ability to cooperate with immigration officials. Homan recently added “We’ve got to take these sanctuary cities on. We’ve got to take them to court, and we’ve got to start charging some of these politicians with crimes.”

Upon this backdrop, in early March 2018, the Department of Justice (DOJ) sued California alleging three new state laws designed to protect certain undocumented immigrants from deportation by the federal government are unconstitutional. This article will focus on the employment-related statute - Immigrant Worker Protection Act. The DOJ is seeking preliminary and permanent injunctions that prohibit California from enforcing Immigrant Worker Protection Act against private employers.

Under the Immigrant Worker Protection Act (AB 450), which became effective January 1, 2018, California has placed restrictions on how private employers in California must respond to ICE efforts to ensure immigration compliance, by requiring ICE agents to provide a judicial warrant to employers to access non-public portions of worksites. Thus, employers may not simply consent for ICE to have access to non-public portions of the worksite. Additionally, employers are prohibited from sharing confidential employee information, such as Social Security numbers, unless required to do so in a Notice of Inspection or provided a judicial warrant. The law also requires employers to provide employees and their authorized representatives, within 72 hours, with copies of written ICE notices providing results of inspections.

According to the DOJ lawsuit, “These provisions, individually and collectively, have the purpose and effect of interfering with the enforcement of the INA and IRCA’s prohibition on working without authorization. California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty. These provisions, as applied to private employers, violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement.”

California officials, including California Attorney General Xavier Becerra, assert they have the constitutional right to govern their state as they see fit because “States and local jurisdictions have the right to determine which policies are best for their communities.”

“There is real uncertainty about who will win it,” said Ilya Somin, law professor at George Mason University. That's in part because the legal landscape on federal vs. state rights related to immigration is not clear. Lower courts have split on whether it is legal for the federal government to require local law enforcement to hand over immigrants. The lawsuit is a risky endeavor for the Trump administration because if it loses, it will potentially empower other states that want to defy the president to pass similar laws.
I will keep you updated on this litigation. For a review of all employment and immigration-related state laws and other issues related to employer immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.

Incidentally, Bruce, do you really want individual states to be able to defy the president? You may think that is great when Trump is the president, but you might not think it is so great if the next president to be defied is a liberal democrat.